March 15, 2014

Back in 2011 this column noted that some liberals were anxious to get rid of Justice Ruth Bader Ginsburg. Their concern wasn’t jurisprudential but actuarial: They feared that Ginsburg, then 78, might outlast President Obama but not President Romney, and they didn’t want a Republican nominating her successor.

Ginsburg, whose 81st birthday is tomorrow, is still in office, and so is Obama. This week Bloomberg View’s Jonathan Bernstein renewed the call for her departure, as well as that of Justice Stephen Breyer, now 75. (Sonia Sotomayor and Elena Kagan shouldn’t get too smug; their time will come.)

The argument now is that Republicans appear set to capture a Senate majority in November, or, as Bernstein delicately puts it, “there is simply no way of knowing whether Democrats will maintain a majority.” He adds that “there’s also no way of knowing when the next Democratic presidential victory might be.”

In truth, everyone knows it might be in 2016, but you see his point. From a partisan standpoint, there’s a realistic prospect that this year will turn out to be Ginsburg’s and even Breyer’s last opportunity to retire while Democrats hold both the White House and a Senate majority.

“Ginsburg and Breyer might not prefer a Supreme Court that is highly partisan and ideologically divided, in which retirements are strategic moves,” Bernstein concludes. “But that’s the court they’ve got. If they care about the principles they’ve fought for, they should retire in time for confirmation battles this year.” Following his advice would be unseemly, he acknowledges, but it’s worth it. The ends justify the ends of their careers.